Obama: State Secrets Privilege Is ‘Overbroad’

President Barack Obama on Wednesday said his administration is looking to reform the controversial “state secrets privilege,” which both Obama and former-president Bush have wielded to try and kill lawsuits over warrantless wiretapping and extraordinary rendition.

Obama addressed the subject in an hour-long prime time press conference touching on a variety of topics, and marking the president’s 100th day in office. The question came from Michael Scherer of Time magazine.

QUESTION: Thank you, Mr. President. During the campaign, you criticized President Bush’s use of the state secrets privilege, but U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition if classified information is involved?

OBAMA: I actually think that the state secret doctrine should be modified. I think right now it’s overbroad.

But keep in mind what happens, is we come in to office. We’re in for a week, and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through, what exactly should an overarching reform of that doctrine take? We’ve got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety.

But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it’s not such a blunt instrument.

And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that as we speak.

Obama’s explanation has a nice ring to it, but ultimately falls flat.

Describing the Justice Department as essentially on auto-pilot when pushing for the blanket dismissal of warrantless wiretapping and extraordinary rendition cases would be reasonable enough if this were Obama’s 14th day in office, instead of his 100th. When the administration first argued Bush’s state secrets position just two days after Obama was sworn in, really, only Threat Level complained.

But since then the Justice Department has unrelentingly continued to push the privilege, including making an argument before the 9th U.S. Circuit Court of Appeals, which rejected the administration’s position on Tuesday.

“According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law,” judge Michael Daly Hawkins wrote in a ruling allowing an extraordinary rendition lawsuit to go forward. “The subject matter of this action … is not a state secret, and the case should not have been dismissed at the outset.”

Moreover, the administration has not only pushed the state secrets argument, but, as Salon noted, it’s added to it, arguing that under the USA Patriot Act the government can never be held to account for warrantless wiretapping unless it’s found to have released intercepted communications to outsiders.

And Obama’s description of the state secrets privilege as a blunt instrument in need of refinement overlooks an existing legal framework available to the government in cases involving classified information. That’s the 1980 Classified Information Procedures Act, which lets the government provide secret documents to a judge, and cleared lawyers, outside of the public’s view, without any need to seek the dismissal of an entire case. The law, in other words, already provides the surgical scalpel. Obama has been choosing the blunt insturment instead.

With even the courts now casting a skeptical eye on the state secrets privilege, it will be interesting to see what the administration does to reform, or, better yet, abandon, this nasty legal relic from the McCarthy era.